In re E.A. CA2/3 ( 2021 )

Filed 4/19/21 In re E.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re E.A. et al., Persons Coming B307114
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 17CCJP00273B,
17CCJP00273C,
Plaintiff and Respondent, 17CCJP00273D)
v.
M.G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Rudolph A. Diaz, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant M.G.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
M.G. (mother) appeals from orders of the juvenile court
denying her petition filed pursuant to Welfare and Institutions
Code section 388.1 We affirm the juvenile court orders.
FACTUAL AND PROCEDURAL BACKGROUND
These dependency proceedings began in September 2017,
when then one-year-old J.R. ingested methamphetamine and was
hospitalized. Mother had left J.R. and his twin brother, A.R.,
overnight in the care of her roommate. She left the twins’ then
three-year-old sister, E.A., with a neighbor.2 When mother
returned home the next morning, she noticed J.R. was shaking.
He appeared to be having a seizure. Mother took J.R. to the
emergency room and learned he had ingested methamphetamine.
A police officer investigating the incident found a drug pipe on
the couch in mother’s home.
Mother knew that her roommate smoked
methamphetamine and had a history of using drugs. Mother also
admitted that two weeks earlier she left J.R. and A.R. with the
same roommate and A.R. had fallen off a bed. However, she
claimed the roommate did not use drugs around the children.
Mother initially denied that she used drugs, but later admitted
she snorted methamphetamine, smoked marijuana, and drank
1 Allfurther statutory references are to the Welfare and
Institutions Code.
2 Mother’s oldest child, G.A., was in the care of her father.
G.A. is not a subject of these proceedings.
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alcohol every week. She also admitted recently using
methamphetamine when out with her roommate. She denied
ever using drugs at home or in the presence of the children.
The Los Angeles County Department of Children and
Family Services (DCFS) detained the children and filed a petition
seeking dependency jurisdiction under section 300, subdivision
(b). In interviews for the detention and jurisdiction and
disposition reports, mother told DCFS social workers that when
she was a minor, her own mother used drugs and drank alcohol.
Mother spent time in foster care because of her mother’s drug
addiction. Mother began using cocaine, alcohol, and marijuana at
age 14; she began using methamphetamine at 21.3 Mother
admitted suffering from anxiety and depression. She was not
receiving any mental health treatment. Although the children
were generally in good health, neither twin was walking or
speaking. A foster parent noted A.R. appeared to be suffering
from significant developmental delays.
In January 2018, mother entered a plea of no contest. The
juvenile court sustained allegations that mother’s substance
abuse, her actions in allowing the roommate to have unlimited
access to the children, and her inadequate supervision and care
all placed the children at substantial risk of suffering serious
physical harm or illness. In March 2018, the juvenile court
asserted dependency jurisdiction over the children and removed
them from mother.4 The court ordered DCFS to provide mother
3 Mother was 26 years old when these proceedings began.
She said she stopped using drugs each time she became
pregnant.
4 Thecourt found M.R. to be the children’s alleged father.
Throughout the proceedings, M.R. resided out of the country and
3
with family reunification services. Mother was to participate in
random or on demand drug and alcohol testing, a full drug and
alcohol program with aftercare, a 12-step program, parenting
classes, and individual counseling. The written case plan
indicated a missed or diluted drug test would be presumed to be a
positive test. The court further ordered that mother’s individual
counseling must address “all underlying [issues] contributing to
mother’s drug/alcohol abuse” and “the detrimental impact that
mother’s drug abuse has upon her ability to appropriately parent
and attend to her children’s special needs.” The individual
counseling was to be with a licensed therapist, or under the
supervision of a licensed therapist. Mother was awarded
monitored visits with the children, at a minimum of two visits
per week.
Mother was discharged from two substance abuse
programs. At the end of February 2018, and again in March
2018, mother relapsed. Although mother’s substance abuse
counselor recommended that she participate in an inpatient
program, mother refused and instead enrolled in a third
outpatient program in April 2018. In July 2018, mother tested
positive for methamphetamine. In January 2019, mother
completed the substance abuse program.
Mother participated in individual counseling, however her
first therapist informed a DCFS social worker that her agency
would not accept documentation regarding the case and the
agency “did not follow [c]ourt orders.” The therapist also told the
social worker that she would not be able to provide information
did not make an appearance in the case. M.R. is not a party to
this appeal.
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about mother’s progress beyond her dates of attendance.
Although the therapist later provided the social worker with
information about mother’s progress, mother stopped receiving
therapy in December 2018. She began again in February 2019.
DCFS had difficulty obtaining information about mother’s
psychiatric care. In late 2018, DCFS verified that a psychiatrist
had prescribed medication for mother, but in February 2019, the
psychiatrist’s office informed a social worker that mother had not
met with the psychiatrist since late November 2018.
Throughout the proceedings, DCFS reported there were
problems with mother’s visits. In May 2018, the caregiver told
DCFS mother was inconsistent and left visits early. Mother
argued with the caregiver and brought other individuals to the
visits, which was “distracting and cause[d] issues during the
visits.” In September 2018, DCFS reported mother canceled
several visits and was usually late to the visits she did attend.
In the months that followed, mother continued to bring
other individuals to the visits. At a visit in February 2019,
mother brought a male friend to the caregiver’s home. E.A. later
told the caregiver that at a party two years earlier, this male
friend took off his clothes, threw up, and “pooped inside the
jumper at the party.” E.A. also told the caregiver that the same
male friend tried to remove her clothes and told her to go in the
jumper and “shake her ‘booty.’ ”
E.A. subsequently told a DCFS social worker more of her
recollections about mother’s friend. E.A. recalled that she once
woke up and found mother and the friend next to her, in her bed,
“moving up and down very fast.” When E.A. asked them to stop,
mother slapped her. Mother and the friend continued, keeping
E.A. awake. E.A. also told the caregiver she saw a man touch
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mother while both were naked. E.A. discussed mother’s many
boyfriends, and remarked on seeing mother arriving at a visit
with a “different boyfriend.” E.A. began receiving mental health
services to help her manage the negative feelings associated with
these past experiences. The caregiver also received guidance
from a mental health liaison to help E.A. cope with her
disturbing memories.
In March 2019, DCFS reported that mother continued to
change the days of visitation and still brought strangers to her
visits. Mother’s visits remained monitored. Mother admitted a
male friend transported her to visits but denied the children had
any contact with him. When asked about E.A.’s reports of seeing
the friend at mother’s visits, “mother appeared oblivious and did
not show any empathy on how this male friend has impacted the
child’s life.” Mother could not explain why E.A. would say the
friend had tried to remove her clothes, but mother also did not
seem surprised, angry, or concerned about the disclosure. She
claimed the caregiver was lying and “putting things in [E.A.’s]
head that would make mother look bad.” Yet, the social worker
saw a video on mother’s Facebook page from February 2019
clearly showing mother’s friend was present at one of mother’s
visits with the children that month.
In April 2019, mother filed a petition seeking a change of
court order pursuant to section 388. Mother asked for
unmonitored visits, arguing no one could care for her children or
love them as she could. She attached a number of documents to
the petition, including certificates showing her completion of a
substance abuse program, parenting classes, and stress and
anger management classes; character references; and 12-step
program attendance certificates and logs. She also attached
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documents showing her participation in mental health services
through the end of 2018, and two 2019 appointments.
In a subsequent last minute information, DCFS expressed
concern about E.A.’s disclosures, the presence of mother’s male
friend at her visits, and mother’s denials and lack of concern
about what E.A. had disclosed. DCFS further reported that
although mother indicated she was seeing a specific psychiatrist,
the social worker’s further investigation revealed the individual
mother named was a therapist rather than a psychiatrist. DCFS
additionally reported mother showed a lack of interest and
interaction with J.R. and A.R. According to the report, mother
demonstrated little bonding with the twins, despite both the
caregiver’s and the social worker’s efforts to encourage mother to
spend more time with the twins, instead of excluding them while
focusing on E.A. Mother had only recently begun to show greater
interest in J.R. and A.R. An additional last minute information
provided details of mother’s psychiatric treatment. The report
noted mother had only recently started seeing a psychiatrist.
DCFS again expressed concerns about mother’s lack of consistent
mental health treatment.
At the 18-month review hearing in May 2019, counsel for
DCFS argued that although mother had received over 20 months
of services, and although she had participated in programs and
testified in a manner that seemed genuine, her actual progress
was minimal.5 Counsel argued the cross-examination of mother
5 Although the 18-month review hearing was originally set
for March 26, 2019, it was continued several times and did not
proceed until May 9, 2019. Mother and the social worker
testified on that date and the matter was continued to May 14,
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revealed she twice left substance abuse programs; she had
continued in individual therapy that was insufficient given the
agency’s unwillingness to cooperate with DCFS or the court;
mother repeatedly switched psychiatrists; and, despite
participating in a 12-step program for nearly two years, mother
was still only on the program’s first step. Counsel pointed to
mother’s dismissive response to E.A.’s disclosures and her lack of
concern as evidence that mother was not ready for unmonitored
visits. Counsel further asserted the court could not trust mother
to stay away from the people she associated with when she was
using drugs.
The children’s counsel similarly argued that mother
continued to be seen with the male friend who was also around
when the family first came to the attention of DCFS, when
mother was still using drugs and J.R. ingested
methamphetamine. The children’s counsel asserted mother
continued to deny responsibility for what happened to J.R.
Mother’s counsel pointed to mother’s completion of
programs and participation in services as evidence that she had,
in fact, made significant progress. Mother’s counsel argued there
was no risk to the children in being returned to mother’s care
with continued supervision.
The juvenile court acknowledged mother had participated
in programs, yet noted that in her testimony she took no
responsibility for J.R. ingesting methamphetamine at the outset
of the case. The court expressed concern that after more than a
year, mother was still on the first step in her 12-step program,
2019, for argument and the court’s ruling. The record on appeal
does not include a transcript of the May 9, 2019 proceedings.
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and the court did not believe mother was taking the program
seriously. The court further noted that while mother had
addressed her drug use, she had missed many tests in the prior
five or six months and her associations and lifestyle created
concerns about her ongoing sobriety. In its ruling, the court
stated it was considering the special needs of J.R. and A.R., and
the trauma E.A. had suffered, as reflected by her disclosures
about her interactions with mother’s friend. The court
terminated mother’s reunification services and set a hearing
pursuant to section 366.26 (.26 hearing). The court further
denied mother’s 388 petition, finding it did not state new
evidence or a change of circumstances, and the proposed change
of order did not promote the best interests of the children.
In a September 2019 report for the .26 hearing, DCFS
informed the court the children had lived with their caregiver—a
non-related extended family member—for around 18 months.
The caregiver was meeting all of the children’s needs and
included them in her family. The caregiver and children were
mutually affectionate. The bond between them was apparent.
In September 2019, mother filed another 388 petition,
requesting her “parental rights back.” She stated she was in
compliance with her case plan and had completed programs as
ordered. Mother further argued it was in the children’s best
interest to be returned to her because she was their mother, she
could care for them unconditionally, the children told her they
loved her, and she had been consistently visiting. Mother
attached the documents she had submitted with the prior 388
petition. The juvenile court denied the petition, again finding the
request did not state new evidence or a change of circumstances,
and the requested change would not promote the children’s best
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interests. The court noted the documents attached to the petition
were the same as those previously submitted and considered at
the 18-month review hearing.
A November 2019 status review report continued to note
mother’s inconsistent visits, although DCFS acknowledged that
most of the cancelled visits occurred because the children or
mother were sick. Still, the report noted mother frequently made
false promises to the children and called the caregiver at odd
times of the day. E.A. informed the social worker that mother
had instructed her to tell the social worker that she loved mother
and wanted to live with her. When the social worker asked E.A.
how she felt about this, E.A. responded that she loved the
caregiver because the caregiver was nice to her. The caregiver
told DCFS she was attached to the children, wanted to provide a
safe and stable home for them, and wished to adopt.
In advance of a continued .26 hearing in May 2020, a social
worker reported the children were affectionate and loving
towards the caregiver. The twins looked to the caregiver for
attention and support when playing. They hugged her and
stayed close to her, trusting her for safety and care. E.A. told the
social worker she loved her “mommy,” referring to the caregiver.
In July 2020, mother filed another 388 petition seeking
return of the children, additional family reunification services, or
an order vacating the .26 hearing and granting mother
unmonitored visits. The petition asserted the requested change
in court orders would benefit the children because they were
bonded with mother and she could provide a safe and loving
home for them. In addition to certificates submitted with prior
388 petitions, mother attached documents showing her
participation in therapy and psychiatric services in March, April,
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and May 2020. A letter indicated mother enrolled in further
outpatient drug and alcohol treatment in September 2019, and
she completed the program in April 2020. She also submitted a
log showing 12-step meeting attendance in 2020.
A July 30, 2020 last minute information reported mother
had not participated in random drug testing through the DCFS-
approved testing facility in the prior six months. DCFS noted
that mother’s 388 petition and the attached documents did not
address the concerns of E.A.’s disclosures about mother’s male
friend, mother’s continued association with that individual as
evidenced by her bringing him to visits, mother’s dishonesty
about the male friend’s presence at visits, and mother’s decision
to instead insist E.A. and the caregiver were lying. The report
again noted the children were “very stabilized, closely bonded
and emotionally secure in their pre-adoptive home with the
caregiver,” and opined it would not be in the children’s best
interests to “disrupt their lives again.”
At the July 30, 2020 hearing, the juvenile court summarily
denied the 388 petition. The court then proceeded to the .26
hearing and terminated parental rights. Mother’s appeal timely
followed.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in
Denying Mother’s 388 Petition
Mother’s sole argument on appeal is that the juvenile court
abused its discretion in denying her 388 petition without an
evidentiary hearing. We find no error.
A. Applicable Legal Principles
“Section 388 provides for modification of juvenile court
orders when the moving party presents new evidence or a change
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of circumstances and demonstrates modification of the previous
order is in the child’s best interests. [Citations.] To obtain a
hearing on a section 388 petition, the parent must make a prima
facie showing as to both elements. [Citations.] [¶] The petition
should be liberally construed in favor of granting a hearing, but
‘[t]he prima facie requirement is not met unless the facts alleged,
if supported by evidence given credit at the hearing, would
sustain a favorable decision on the petition.’ [Citations.] The
petition may not consist of ‘general, conclusory allegations.’
[Citation.] ‘Successful petitions have included declarations or
other attachments which demonstrate the showing the petitioner
will make at [the] hearing . . . .’ [Citation.] When determining
whether the petition makes the necessary showing, ‘the court
may consider the entire factual and procedural history of the
case.’ ” (In re Samuel A. (2020) 55 Cal.App.5th 1, 6–7.)
After the juvenile court has terminated family reunification
services, family reunification is no longer the primary goal of the
proceedings. Instead, “ ‘the focus shifts to the needs of the child
for permanency and stability’ [citation], and in fact, there is a
rebuttable presumption that continued foster care is in the best
interests of the child. [Citation.] A court hearing a motion for
change of placement at this stage of the proceedings must
recognize this shift of focus in determining the ultimate question
before it, that is, the best interests of the child.” (In re
Stephanie M. (1994) 7 Cal.4th 295, 317; In re K.L. (2016)
248 Cal.App.4th 52, 62.)
We review a juvenile court order summarily denying a
388 petition for abuse of discretion. (In re Samuel A., supra,
55 Cal.App.5th at p. 7; In re K.L., supra, 248 Cal.App.4th at
p. 62.) “ ‘ “The appropriate test for abuse of discretion is whether
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the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.” ’ ” (In re Stephanie M., supra, 7 Cal.4th at
pp. 318–319.)
B. Discussion
Mother has not established the juvenile court’s summary
denial of her 388 petition exceeded the bounds of reason. By the
time mother filed her last 388 petition, evidence had previously
been submitted to the court establishing that mother had
completed a substance abuse program, that she had at least
intermittently participated in mental health services, and that
she regularly attended 12-step meetings. The documentation
submitted in connection with the last 388 petition showed, at
most, continued participation in services. It did not address, for
example, mother’s failure to regularly drug test.
However, even if mother’s petition sufficiently alleged new
evidence or changed circumstances, we find no abuse of discretion
in the juvenile court’s conclusion that mother did not establish a
prima facie case that the requested orders would be in the
children’s best interests. As noted above, once the juvenile court
terminates reunification services, the focus of the proceedings
changes from family reunification to the needs of the children for
permanence and stability. (In re J.H. (2007) 158 Cal.App.4th
174, 182–183 [children need stability and permanency, not
protracted legal proceedings that prolong uncertainty for them].)
Mother’s 388 petition asked the court to return the children to
her, grant her further reunification services, or vacate the
hearing to select a permanent plan. The petition asserted only
that the children were bonded with mother and she could provide
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a safe and loving home for them. These were conclusory
statements that were in conflict with the record before the
juvenile court. Although the children were detained over two
years earlier, mother still had only monitored visits. The visits
mother did have were plagued by issues such as mother bringing
third parties to visits, including the friend who had interacted
inappropriately with E.A., mother’s efforts to coach E.A., and at
times her inconsistency in visiting. The juvenile court had
previously concluded that although mother completed programs,
her long-term sobriety remained in question because of missed
drug tests, and her lack of meaningful progress in her 12-step
program.
On the other hand, the children were in a stable placement
with the caregiver and had a bond and attachment to her. When
DCFS first detained the twins they appeared to be suffering from
undiagnosed developmental delays. They began receiving
Regional Center services with the assistance of the caregiver. By
November 2019, DCFS was able to report that the twins’ speech
had improved and their aggression had decreased. The caregiver
was the adult who interacted with the children’s service
providers. J.R. and A.R. looked to the caregiver to provide
security and care. In contrast, mother’s bond with the twins was
minimal. The social worker and the caregiver had to repeatedly
encourage mother to attempt to develop her relationship with
them.
E.A. likewise confided in the caregiver and referred to her
as “mommy.” After E.A. disclosed her memories about mother’s
male friend and what she had witnessed while in mother’s care,
she experienced anxiety, sleep issues, and “negative memories
associated with her past trauma.” By June 2020, E.A.’s mental
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health services provider indicated she had made significant
progress in mental health treatment, all while in the home of the
caregiver. (See In re D.R. (2011) 193 Cal.App.4th 1494, 1512
[although bond with caregiver is not dispositive, disruption of an
existing psychological bond between children and caretakers is
an extremely important factor in 388 motion, citing In re
Jasmon O. (1994) 8 Cal.4th 398, 408].)
Mother’s 388 petition did not allege facts to rebut the
presumption that continued foster care was in the children’s best
interests at this advanced stage of the proceedings. (In re K.L,
supra, 248 Cal.App.4th at pp. 63–64.) The children were in a
stable placement and had a secure attachment to the caregiver,
who had attended to their specific needs. Mother had received
nearly two years of services, yet still had only monitored visits
with the children. She continued some form of relationship with
the male friend with whom she had associated when using drugs,
and who had been a source of emotional trauma for E.A. Mother
also had a long history of drug abuse beginning when she was
14 years old; her many missed drug tests reasonably indicated to
the court that her sobriety remained in question. (See In re
Ernesto R. (2014) 230 Cal.App.4th 219, 225 [chronic drug abuse
presents a lifelong challenge and may put children of drug
abusers in danger]; In re Mary G. (2007) 151 Cal.App.4th 184,
205–206.) Delaying permanency to provide mother with further
reunification services “would deprive [the children] of a
permanent, stable home in exchange for an uncertain future.” (In
re Ernesto R., at p. 225.)
Mother’s unsupported statements that she could provide
the children with a safe home and the children were bonded to
her, did not constitute a prima facie case for returning the
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children to mother’s physical custody, providing further
reunification services, or vacating the .26 hearing. “On the eve of
a section 366.26 hearing, the child’s interest in stability is the
court’s foremost concern, outweighing the parent’s interest in
reunification. Thus, a section 388 petition seeking
reinstatement . . . of reunification services must be directed at
the best interest of the child.” (In re Ramone R. (2005)
132 Cal.App.4th 1339, 1348–1349.) Mother’s allegations in the
petition did not state reasons to show how delaying permanence
and stability would be in the children’s best interests. The
juvenile court did not abuse its discretion in summarily denying
the 388 petition. (See In re Jackson W. (2010) 184 Cal.App.4th
247, 260 [summary denial not abuse of discretion where petition
made no showing of how the minors’ best interests would be
served by depriving them of a permanent, stable home in
exchange for an uncertain future]; In re A.S. (2009)
180 Cal.App.4th 351, 358.)
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DISPOSITION
The juvenile court orders are affirmed.
NOT TO BE PUBLISHED.
ADAMS, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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